Amicus Curiae Brief — County of Maui, Hawaii, Petitioner v. Hawaii Wildlife Fund, et al.

No. 18-260

================================================================

In The

Supreme Court of the United States

-----------------------------------------------------------------COUNTY OF MAUI, HAWAI‘I,

Petitioner,

v.

HAWAI‘I WILDLIFE FUND; SIERRA CLUB-MAUI

GROUP; SURFRIDER FOUNDATION; AND

WEST MAUI PRESERVATION ASSOCIATION,

Respondents.

-----------------------------------------------------------------On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

-----------------------------------------------------------------BRIEF OF THE STATES OF MARYLAND,

CALIFORNIA, CONNECTICUT, ILLINOIS,

MAINE, MICHIGAN, NEW JERSEY, NEW MEXICO,

OREGON, RHODE ISLAND, VERMONT, AND

WASHINGTON, THE COMMONWEALTH OF

MASSACHUSETTS, AND THE DISTRICT OF

COLUMBIA AS AMICI CURIAE

SUPPORTING RESPONDENTS

-----------------------------------------------------------------BRIAN E. FROSH

Attorney General of Maryland

JOSHUA M. SEGAL*

STEVEN J. GOLDSTEIN

Special Assistant

Attorneys General

200 Saint Paul Place

Baltimore, Maryland 21202

jsegal@oag.state.md.us

(410) 576-6446

*Counsel of Record

[Additional Counsel Listed on Inside Cover]

================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

XAVIER BECERRA

Attorney General

STATE OF CALIFORNIA

KARL A. RACINE

Attorney General

DISTRICT OF COLUMBIA

WILLIAM TONG

Attorney General

STATE OF CONNECTICUT

KWAME RAOUL

Attorney General

STATE OF ILLINOIS

AARON M. FREY

Attorney General

STATE OF MAINE

MAURA HEALEY

Attorney General

COMMONWEALTH OF

MASSACHUSETTS

DANA NESSEL

Attorney General

STATE OF MICHIGAN

GURBIR S. GREWAL

Attorney General

STATE OF NEW JERSEY

HECTOR BALDERAS

Attorney General

STATE OF NEW MEXICO

ELLEN F. ROSENBLUM

Attorney General

STATE OF OREGON

PETER F. NERONHA

Attorney General

STATE OF RHODE ISLAND

THOMAS J. DONOVAN, JR.

Attorney General

STATE OF VERMONT

BOB FERGUSON

Attorney General

STATE OF WASHINGTON

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS ......................................

i

TABLE OF AUTHORITIES .................................

iii

INTERESTS OF AMICI CURIAE .......................

1

SUMMARY OF ARGUMENT ..............................

2

ARGUMENT ........................................................

4

I.

II.

THE CLEAN WATER ACT’S NPDES PROGRAM

DOES NOT CATEGORICALLY EXCEPT POINT

SOURCE DISCHARGES TO NAVIGABLE WATERS

VIA GROUNDWATER OR OTHER CONDUITS .....

4

A. The Clean Water Act Broadly Prohibits Pollutant Discharges Unless Authorized by NPDES Permits ................

4

B. The Prohibition on Unpermitted Point

Source Discharges to Navigable Waters

Contains No Exception for Discharges

Through Groundwater or Other Conduits .....................................................

6

EXCEPTING DISCHARGES VIA GROUNDWATER

OR OTHER CONDUITS WOULD UNDERMINE

STATES’ ABILITY TO PROTECT THEIR NAVIGABLE WATERS ..................................................

10

A. The Clean Water Act Promotes Federalism by Empowering States to Protect Their Navigable Waters ................ 11

ii

TABLE OF CONTENTS—Continued

Page

B. An Exception for Discharges Through

Groundwater or Other Conduits Would

Significantly Erode the National Regulatory Floor and Degrade Water Quality ......................................................... 13

1. Other Federal Laws Do Not Ameliorate the Consequences of Creating an Exception for Discharges Via

Groundwater or Other Conduits .... 14

2. State Regulation Does Not Adequately Protect Against the Consequences of Reversal ........................ 18

III.

REGULATING GROUNDWATER-CONDUIT DISCHARGES UNDER THE NPDES PROGRAM IS

FEASIBLE WITHOUT UNDUE BURDEN ............ 21

CONCLUSION..................................................... 31

iii

TABLE OF AUTHORITIES

Page

CASES

Burlington N. and Santa Fe Ry. Co. v. United

States, 556 U.S. 599 (2009)......................................16

Christopher v. SmithKline Beecham Corp., 567

U.S. 142 (2012) ........................................................24

City of Chi. v. Environmental Def. Fund, 511 U.S.

328 (1994) ..................................................................7

Environmental Def. Ctr., Inc. v. EPA, 344 F.3d

832 (9th Cir. 2003) ...................................................28

Hawai‘i Wildlife Fund v. County of Maui, 24

F. Supp. 3d 980 (D. Haw. 2014) ...............................17

Hawai‘i Wildlife Fund v. County of Maui, 886

F.3d 737 (9th Cir. 2018) ...........................................15

International Paper Co. v. Ouelette, 479 U.S. 481

(1987) .......................................................................21

Meghrig v. KFC W., Inc., 516 U.S. 479 (1996) .............15

Natural Res. Def. Council v. Costle, 568 F.2d

1369 (D.C. Cir. 1977) ...............................................28

Natural Res. Def. Council, Inc. v. County of L.A.,

725 F.3d 1194 (9th Cir. 2013) ..................................30

Rapanos v. United States, 547 U.S. 715 (2006) ............6

South Fla. Water Mgmt. Dist. v. Miccosukee

Tribe, 541 U.S. 95 (2004) ............................... 8, 28, 29

iv

TABLE OF AUTHORITIES—Continued

Page

Upstate Forever v. Kinder Morgan Energy Partners, L.P., 887 F.3d 637 (4th Cir. 2018) ...................15

Yadkin Riverkeeper v. Duke Energy Carolinas

LLC, 141 F. Supp. 3d 428 (M.D.N.C. 2015)....... 15, 30

STATUTES

16 U.S.C. § 1455b(a)(1) ...............................................18

33 U.S.C. § 1251(a) .................................................. 4, 10

33 U.S.C. § 1251(b) ......................................................11

33 U.S.C. § 1311(a) .............................................. 2, 4, 13

33 U.S.C. § 1329 ..........................................................14

33 U.S.C. § 1342(a)(1) ...................................................5

33 U.S.C. § 1342(b) ............................................ 5, 11, 12

33 U.S.C. § 1342(b)(1)(A) ............................................11

33 U.S.C. § 1362(6) ............................................ 5, 16, 17

33 U.S.C. § 1362(11) ....................................................30

33 U.S.C. § 1362(12) .................................... 2, 4, 6, 9, 27

33 U.S.C. § 1362(14) ...................................... 5, 7, 14, 15

33 U.S.C. § 1370 .................................................... 12, 13

33 U.S.C. § 2702(a) ......................................................18

42 U.S.C. § 300f(1) – (2) ..............................................17

42 U.S.C. § 300g-1(b)(1)(A) – (B) ................................17

42 U.S.C. §§ 300h – 300h-8 .........................................17

42 U.S.C. § 6903(5) ......................................................16

v

TABLE OF AUTHORITIES—Continued

Page

42 U.S.C. § 9601(14) ....................................................16

Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C.

§§ 9601 – 9675 .........................................................16

Resource Conservation and Recovery Act of

1976, 42 U.S.C. §§ 6901 – 6992 ......................... 15, 16

Safe Drinking Water Act, 42 U.S.C. §§ 300f –

300j-27 .....................................................................17

Ariz. Rev. Stat. Ann. § 49-203(A)(2) ..................... 19, 20

Kan. Stat. § 65-164(a) – (b).........................................19

Ky. Rev. Stat. Ann. § 224.16-050(4) ...................... 19, 20

Mich. Comp. Laws § 324.3109(1)................................19

Miss. Code Ann. § 49-17-34(2) ....................................20

W. Va. Code § 22-11-4(a)(1) .........................................20

REGULATIONS

40 C.F.R. § 122.28(a)(2)...............................................28

40 C.F.R. § 122.28(b)(2)...............................................28

40 C.F.R. § 122.28(b)(2)(v) .................................... 28, 29

40 C.F.R. § 122.4(d) .....................................................12

Colo. Code Regs. § 1002-43:43.7 .................................29

Md. Code Regs. 26.04.02.04 ........................................29

25 Pa. Code § 73.13 .....................................................29

S.C. Code Ann. Regs. 61-56.200 ..................................29

vi

TABLE OF AUTHORITIES—Continued

Page

ADMINISTRATIVE MATERIALS

Amendments to the Water Quality Standards

Regulation That Pertain to Standards on Indian Reservations, 56 Fed. Reg. 64,876 (Dec.

12, 1991) ..................................................................23

EPA National Pollutant Discharge Elimination

System Permit Application Regulations for

Storm Water Discharges, 55 Fed. Reg. 47,990

(Nov. 16, 1990) .........................................................23

EPA, NPDES State Program Information: State

Program Authority ....................................................5

Interpretive Statement on Application of the

Clean Water Act National Pollutant Discharge Elimination System Program to Releases of Pollutants from a Point Source to

Groundwater, 84 Fed. Reg. 16,810 (Apr. 23,

2019) ........................................................................23

National Pollutant Discharge Elimination System Permit Regulation and Effluent Limitations

Guidelines and Standards for Concentrated

Animal Feeding Operations, 66 Fed. Reg. 2960

(Jan. 12, 2001) .........................................................22

Reissuance of NPDES General Permits for

Storm Water Discharges from Construction

Activities, 63 Fed. Reg. 7858 (Feb. 17, 1998) ..........22

Revised Definition of Waters of the United

States, 84 Fed. Reg. 4154 (Feb. 14, 2019) .................8

U.S. EPA, EPA-833-B-96-003, NPDES Permit

Writers’ Manual (1996) ...........................................22

vii

TABLE OF AUTHORITIES—Continued

Page

U.S. EPA, EPA-833-K-10-001, NPDES Permit

Writers’ Manual (2010) ...........................................22

OTHER AUTHORITIES

A Legislative History of the Water Pollution

Control Amendments of 1972 (1972) ......................13

1

INTERESTS OF AMICI CURIAE

Amici curiae the States of Maryland, California,

Connecticut, Illinois, Maine, Michigan, New Jersey,

New Mexico, Oregon, Rhode Island, Vermont, and

Washington, the Commonwealth of Massachusetts,

and the District of Columbia (“the Amici States”) have

a substantial interest in the appropriate application of

the Clean Water Act’s National Pollutant Discharge

Elimination System (“NPDES”) permit program and

the Act’s prohibition against unpermitted discharges

of pollutants into navigable waters. The Amici States

rely on the Clean Water Act’s cooperative federalism

framework to ensure that discharges to navigable waters are monitored and comply with permits that take

into account the capabilities of treatment technologies,

impacts on water quality, and the Act’s overall goal of

protecting the nation’s waters. More specifically, the

Amici States rely on the Act to ensure a stable nationwide regulatory floor protecting their surface waters

against pollution flowing downstream across state

lines.

This case is not about harnessing the Clean Water

Act to regulate groundwater pollution, a subject that is

largely a matter of traditional state regulation. Rather,

it is about regulating pollution in navigable waters,

where that pollution is traceable from a defined point

source—the indisputable subject of national regulation under the Clean Water Act. Reversing the court of

appeals’ decision, or creating a Clean Water Act exception for point source discharges that pass through

groundwater or other conduits before reaching navigable waters, would be incongruous with the Act’s text

2

and purposes alike.1 Not only would such an exception

threaten the quality of navigable waters that receive

discharges of pollutants from point sources via groundwater, it would give polluters an incentive to skirt

Clean Water Act regulation simply by relocating point

source discharges of pollution to nearby groundwater.

The Amici States urge the Court to affirm the court of

appeals’ decision and hold that, where pollutants are

fairly traceable from a point source to navigable waters

through groundwater or other conduits, the underlying

point source discharge falls within the scope of the

Clean Water Act’s NPDES program.

------------------------------------------------------------------

SUMMARY OF ARGUMENT

1. The Clean Water Act bars “any addition of any

pollutant to navigable waters from any point source”

unless authorized by a permit and in compliance with

the Act’s requirements. 33 U.S.C. §§ 1311(a), 1362(12).

Nothing in the Act’s text requires that point sources

discharge pollutants directly to navigable waters. The

Act also contains no exception for discharges that pass

1

Some of the Amici States filed comments asking the United

States Environmental Protection Agency (“EPA”) to withdraw the

“interpretive statement” it recently issued on this question. See

Attorneys General of Maryland, California, Colorado, Connecticut, the District of Columbia, Maine, Massachusetts, Michigan,

Oregon, Rhode Island, and Vermont, Comment Letter on Proposed Interpretive Statement on Application of the Clean Water

Act NPDES Program to Releases of Pollutants from a Point

Source to Groundwater (June 7, 2019), https://www.regulations.

gov/document?D=EPA-HQ-OW-2019-0166-0220.

3

through groundwater before reaching navigable waters. Instead, such point source discharges are subject

to NPDES permitting if the pollutants are fairly traceable from the point source to navigable waters—a requirement ensuring that pollutants entering navigable

waters are truly “from” the point source, as the statute

requires.

2. NPDES coverage of point source discharges of

pollutants to navigable waters through groundwater

or other conduits protects state interests. The NPDES

program promotes federalism by empowering states to

protect their waters without fear that their efforts will

be undercut by pollution crossing jurisdictional boundaries. Excepting discharges that travel through

groundwater or other conduits before reaching navigable waters would jeopardize those waters and leave a

dangerous and textually unjustified gap in the Clean

Water Act’s protections. Other federal environmental

statutes and purely state-law regulation would not fill

that gap.

3. Continuing federal regulation of the discharges at issue is feasible without undue burden.

Although Petitioner and its amici cast the lower court’s

ruling as a vast expansion of the NPDES program,

EPA has—until recently—long rejected the categorical

exception they propose, and the sky has not fallen.

Quite the contrary: agencies have issued just the sorts

of permits that Petitioner and its amici claim are impracticable. Further, the only discharges covered by

the court of appeals’ ruling are those that are fairly

traceable from particular point sources to navigable

4

waters. In appropriate circumstances, general permits

provide agencies with a tool to streamline and simplify

the process of permitting large numbers of similar

sources. Any burdens associated with affirming the

court of appeals’ ruling do not warrant an exception

that Congress itself did not create.

------------------------------------------------------------------

ARGUMENT

I.

THE CLEAN WATER ACT’S NPDES PROGRAM

DOES NOT CATEGORICALLY EXCEPT POINT SOURCE

DISCHARGES TO NAVIGABLE WATERS VIA GROUNDWATER OR OTHER CONDUITS.

A. The Clean Water Act Broadly Prohibits

Pollutant Discharges Unless Authorized by NPDES Permits.

Congress enacted the Clean Water Act with the

primary objective of “restor[ing] and maintain[ing] the

chemical, physical and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). To help achieve that

objective, Congress prohibited “the discharge of any

pollutant by any person,” except in compliance with

listed provisions of the Act. Id. § 1311(a).

Consistent with the Clean Water Act’s overall objective, Congress broadly defined the prohibited conduct. The Act defines “discharge of a pollutant” to

include “any addition of any pollutant to navigable waters from any point source.” Id. § 1362(12) (emphasis

added). “Pollutant,” too, is a broad term. Subject to exceptions inapplicable here, it includes “dredged spoil,

5

solid waste, incinerator residue, sewage, garbage,

sewage sludge, munitions, chemical wastes, biological

materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged

into water.” Id. § 1362(6). Similarly, “point source” is

defined broadly to include (again subject to exceptions

inapplicable here) “any discernible, confined and discrete conveyance, including but not limited to any pipe,

ditch, channel, tunnel, conduit, well, discrete fissure,

container, rolling stock, concentrated animal feeding

operation, or vessel or other floating craft, from which

pollutants are or may be discharged.” Id. § 1362(14)

(emphasis added).

Despite these broad definitions, Congress did provide a mechanism for otherwise prohibited discharges

to occur. Under the NPDES program, EPA may “issue

a permit for the discharge of any pollutant[ ] or combination of pollutants” in compliance with certain conditions. Id. § 1342(a)(1).

States may implement the NPDES program

within their respective jurisdictions in lieu of EPA.

EPA must approve a state’s proposal to do so if it determines that certain mandatory components are included. Id. § 1342(b). To date, 47 states and the U.S.

Virgin Islands have assumed at least partial responsibility for administering the NPDES program. See EPA,

NPDES State Program Information: State Program

Authority, https://www.epa.gov/npdes/npdes-stateprogram-information (last visited July 12, 2019).

6

B. The Prohibition on Unpermitted Point

Source Discharges to Navigable Waters

Contains No Exception for Discharges

Through Groundwater or Other Conduits.

On its face, the Clean Water Act’s prohibition on

the unauthorized “addition of any pollutant to navigable waters from any point source,” 33 U.S.C. § 1362(12)

(emphasis added), encompasses both direct and indirect additions of pollutants to navigable waters. Justice Scalia’s opinion in Rapanos v. United States

acknowledged as much:

The Act does not forbid the “addition of any

pollutant directly to navigable waters from

any point source,” but rather the “addition of

any pollutant to navigable waters.” Thus, from

the time of the CWA’s enactment, lower courts

have held that the discharge into intermittent

channels of any pollutant that naturally

washes downstream likely violates § 1311(a),

even if the pollutants discharged from a point

source do not emit “directly into” covered waters, but pass “through conveyances” in between.

547 U.S. 715, 723 (2006) (plurality op.) (emphasis in

original; citations omitted). Notably, the opinion’s reference is to pollutants that pass through “conveyances,” not just through those conveyances that are

also point sources.

The prohibition on unauthorized point source discharges of pollutants to navigable waters contains no

7

express exception for those discharges that pass

through groundwater. With such an exception absent

from the text, this Court should not read one in. See,

e.g., City of Chi. v. Environmental Def. Fund, 511 U.S.

328, 334-38 (1994). Indeed, as the United States notes,

Congress mentioned groundwater repeatedly in the

Clean Water Act. See Br. for U.S. as Amicus Curiae

Supporting Pet’r (“U.S. Br.”) 16-19. But contrary to the

conclusion that the United States draws, these repeated references confirm that the subject of groundwater was very much before Congress and that the

absence of a groundwater conduit exception must

therefore be treated as deliberate. Not only that, but

the Act’s definition of “point source” specifically includes “well,” 33 U.S.C. § 1362(14), and it is unclear

how a well could discharge pollutants to navigable waters in any manner other than via groundwater.

Equally absent from the statute is the broader exception that Petitioner proposes. According to Petitioner, point source discharges to navigable waters are

subject to the Clean Water Act if they pass through

conduits that are themselves point sources, yet are excepted if any of the conduits is not a point source. E.g.,

Pet’r Br. 54. But the Clean Water Act does not distinguish among different kinds of conduits; the “addition

of any pollutant” must only be “to navigable waters”

and “from any point source.” 33 U.S.C. § 1362(12) (emphasis added). And although Petitioner attempts to

ground its “means of delivery” test in the phrase “from

a point source,” Pet’r Br. 28-30, that phrase most logically refers to the regulated point source itself, rather

8

than the types of conduits that carry pollutants to navigable waters.2

Regulating point source pollutants that reach navigable waters through groundwater is not the same as

regulating groundwater as a “navigable water” or invading state prerogatives regarding groundwater regulation.3 The court of appeals’ decision does not define

“navigable waters” to include groundwater, nor does it

otherwise extend the Clean Water Act to cover discharges of pollutants into groundwater as such. Rather, the decision stands for the unremarkable

proposition that a point source discharge to navigable

waters (i.e., jurisdictional waters) remains a point

source discharge to navigable waters even if it passes

through groundwater along the way. Whether or not

Congress “intend[ed] for the CWA to expand federal jurisdiction to groundwater,” Br. of Amici Curiae State of

W. Va., et al. (“W. Va. Br.”) 11, is therefore irrelevant.

Nor does the court of appeals’ decision raise the

specter of unfettered liability for discharges into

2

Those conduits may themselves be regulated, however, if

they are point sources. See South Fla. Water Mgmt. Dist. v. Miccosukee Tribe, 541 U.S. 95, 104-05 (2004).

3

The precise contours of “navigable waters,” which the Clean

Water Act defines by reference to “the waters of the United

States,” have been the subject of considerable litigation and regulation. See, e.g., Rapanos, 547 U.S. 715; Revised Definition of

Waters of the United States, 84 Fed. Reg. 4154 (Feb. 14, 2019).

This brief takes no position on the proper definition of “navigable

waters” or “the waters of the United States,” and in submitting

this brief, no Amicus State intends to change any position it previously has taken on those questions.

9

groundwater. For such discharges to be subject to the

NPDES program, the fact that groundwater connects

to navigable waters is not enough. Rather, such discharges are covered only if the pollutants can be fairly

traced from navigable waters to the point source, for

only then can it be said that the discharge to navigable

waters is “from [the] point source.” 33 U.S.C. § 1362(12)

(emphasis added). In those circumstances, it is only

sensible—and consistent with the statutory text—to

require the point source to comply with effluent limitations designed to protect navigable waters, as the

text requires.

Practical considerations underscore the problems

with the exception that Petitioner seeks. Accepting Petitioner’s position would allow savvy entities to avoid

altogether the Clean Water Act’s prohibition on unpermitted discharges from point sources. Instead of discharging directly into a river, a polluter might move its

discharge pipe into immediately adjacent groundwater

and, if Petitioner’s position were correct, thereby evade

the Clean Water Act.4 Petitioner and its amici do not

4

This sort of gamesmanship is by no means fanciful. In Colorado, the operator of a silver mine sought to terminate its discharge permit because it had moved its discharges from surface

water to a nearby pipe buried in waste rock material. The state

permitting agency denied the termination request because the

unconsolidated nature of that material, coupled with the discharge’s proximity to the surface water at issue, created a direct

hydrologic connection between the discharge and that surface water.

See Colorado Department of Public Health & Environment, Permit Termination Request Denial—December 2016 Request Permit No. CO0000003 (June 1, 2017), https://environmentalrecords.

colorado.gov/HPRMWebDrawer/Record/1013777/File/Document.

10

explain why Congress would have meant to give polluters a road map to evade Clean Water Act permitting

requirements, threaten the integrity of the nation’s

waters, and jeopardize the interests of states downstream. Such a result would be antithetical to the Act’s

prohibition against unpermitted discharges of pollutants to navigable waters, as well as its stated goal of

“restor[ing] and maintain[ing] the chemical, physical

and biological integrity of the Nation’s waters.” 33

U.S.C. § 1251(a).

II.

EXCEPTING DISCHARGES VIA GROUNDWATER OR

OTHER CONDUITS WOULD UNDERMINE STATES’

ABILITY TO PROTECT THEIR NAVIGABLE WATERS.

Petitioner and its amici argue that the court of appeals’ decision denigrates states’ interests because it

encroaches on state sovereignty and leaves states with

untenable regulatory burdens. See, e.g., Pet’r Br. 51-52;

W. Va. Br. 27-34. The Amici States disagree. An interpretation of the Clean Water Act that is consistent with

the statutory text and furthers the Act’s purposes—including coverage of the discharges at issue in this

case—is necessary to protect state interests, and concerns about increased burdens are significantly overstated.

11

A. The Clean Water Act Promotes Federalism by Empowering States to Protect

Their Navigable Waters.

The Clean Water Act gives states a central role in

regulating point source discharges. “[I]t is the policy of

Congress,” the Clean Water Act declares, “that the

States . . . implement the permit programs under sections 1342 and 1344 of this title.” 33 U.S.C. § 1251(b);

see 33 U.S.C. § 1342(b) (providing that, if EPA determines that certain conditions are satisfied, EPA “shall”

authorize a state to administer the NPDES program).

Congress’s stated desire for states to implement the

NPDES permit program—the Clean Water Act’s principal means of regulating point source pollution—is

one reflection of its solicitude for “the primary responsibilities and rights of States to prevent, reduce, and

eliminate pollution.” 33 U.S.C. § 1251(b).

At the same time, the Act establishes minimum

standards to which NPDES programs must adhere.

Delegation of permitting authority depends on a

state’s ability to “apply, and insure compliance with,

any applicable requirements of sections 1311, 1312,

1316, 1317, and 1343 [of Title 33].” 33 U.S.C.

§ 1342(b)(1)(A). And although states are free to implement water quality protections that are more stringent

than the standards established under the Clean Water

Act, they may not fall below those standards. See id.

§ 1370 (providing that states cannot “adopt or enforce

any effluent limitation, or other limitation, effluent

standard, prohibition, pretreatment standard, or

standard of performance which is less stringent” than

12

those established “under this chapter”). Thus, while

some variation is allowed from state to state, the Act

ensures that no state can adopt or enforce water quality controls that fall below a national regulatory floor.

States rely on this regulatory floor in two ways.

First, they rely on the Clean Water Act’s minimum nationwide standards to protect their waters against upstream, out-of-state pollution that they cannot

regulate directly. Although pollutants discharged in

one state can travel downstream to the waters of another, states typically cannot apply their own laws to

polluters outside their boundaries. See generally International Paper Co. v. Ouelette, 479 U.S. 481, 491-97

(1987). The Clean Water Act’s NPDES program protects downstream states by ensuring that upstream,

out-of-state point source discharges are subject at least

to nationwide minimum standards. See, e.g., 33 U.S.C.

§ 1370 (state standards cannot be “less stringent” than

federal standards); id. § 1342(b) (requirements for

states to exercise delegated permitting authority, including that their NPDES programs must “insure that

the public, and any other State the waters of which may

be affected, receive notice of each application for a permit” and “provide an opportunity for public hearing before a ruling on each such application” (emphasis

added)); 40 C.F.R. § 122.4(d) (NPDES permits must ensure compliance with water quality standards of downstream states). The NPDES program’s protections

become meaningless, however, when a source is not

subject to the program at all.

13

Second, states rely on the Clean Water Act’s regulatory floor for assurance that protecting water quality

will not cause businesses to relocate to jurisdictions

with less stringent water quality protections. Indeed,

these concerns hamstrung state efforts to control water pollution prior to 1972. See, e.g., A Legislative History of the Water Pollution Control Amendments of

1972, at 452 (1972) (statement of Rep. Reuss, quoting

Governor Wendell Anderson of Minnesota, that

“[e]very governor in the country knows what is the

greatest political barrier to effective pollution control,”

namely, “the threat of our worst polluters to move their

factories out of any State that seriously tries to protect

its environment” and “the practice of playing off one

State against the other”). Congress responded by prohibiting all point sources from discharging pollutants

to navigable waters (absent a permit) and barring

states from setting standards below the national floor.

See 33 U.S.C. §§ 1311(a), 1370. Far from encroaching

upon states’ rights, that national floor empowers states

to protect their navigable waters without fear that

other states will undermine those efforts.

B. An Exception for Discharges Through

Groundwater or Other Conduits Would

Significantly Erode the National Regulatory Floor and Degrade Water Quality.

A bar on unauthorized point source discharges to

navigable waters via groundwater (or other conduits)

is one component of the federal regulatory floor on

14

which the Amici States depend. Petitioner and its

amici, however, suggest that excepting such discharges

from the NPDES program would pose little cause for

concern because they already are subject to other federal statutes, as well as state regulation not required

by the Clean Water Act. See, e.g., Pet’r Br. 43-44; W. Va.

Br. 21-24; U.S. Br. 31-33. These contentions are incorrect.

1. Other Federal Laws Do Not Ameliorate the Consequences of Creating an

Exception for Discharges Via Groundwater or Other Conduits.

Petitioner and its amici cite a host of federal laws

that would remain in place even if this Court were to

reverse the court of appeals’ decision. None of those

laws adequately mitigates the consequences of such a

ruling.

First, Petitioner and its amici are wrong to suggest

that the Clean Water Act’s nonpoint source programs

are relevant here. See, e.g., Pet’r Br. 23-26; W. Va. Br.

15-17. Those programs provide funding and technical

support to help states control the discharge of pollutants to navigable waters from diffuse sources, such as

some storm water and farm field runoff.5 See, e.g., 33

U.S.C. § 1329. This support is useful, to be sure, but it

is beside the point. The discharges of pollutants in this

case—as well as other discharges implicating the

5

Concentrated animal feeding operations, by contrast, are

regulated as point sources. 33 U.S.C. § 1362(14).

15

question presented—are from point sources, such as

wastewater injection wells, coal ash impoundments,

and leaking pipelines. See, e.g., Hawai‘i Wildlife Fund

v. County of Maui, 886 F.3d 737, 744-45 (9th Cir. 2018)

(injection wells discharging to Pacific Ocean via

groundwater); Yadkin Riverkeeper v. Duke Energy Carolinas LLC, 141 F. Supp. 3d 428, 436-37, 444 (M.D.N.C.

2015) (coal ash lagoons discharging to the Yadkin

River via groundwater); Upstate Forever v. Kinder Morgan Energy Partners, L.P., 887 F.3d 637, 647-48 (4th

Cir. 2018) (gasoline pipeline leaking via groundwater

into creeks, adjacent wetlands, and lakes); see also 33

U.S.C. § 1362(14) (defining “point source”). The pollutants merely pass through a groundwater conduit before reaching navigable waters. And because they are

traceable from a particular point source (as required

by the decision below), controlling their discharge does

not pose the challenges ordinarily associated with controlling nonpoint source pollution.

Nor do other federal pollution control and remediation statutes adequately fill the gap that would result

from a groundwater-conduit exception, as Petitioner

and its amici argue. See, e.g., Pet’r Br. 43-44; U.S. Br.

31-33. The Resource Conservation and Recovery Act of

1976 (“RCRA”), 42 U.S.C. §§ 6901 – 6992, for instance,

does not substitute for regulation under the Clean Water Act. The “primary purpose” of RCRA, this Court has

observed, “is to reduce the generation of hazardous

wastes and to ensure the proper treatment, storage,

and disposal of that waste which is nonetheless generated.” Meghrig v. KFC W., Inc., 516 U.S. 479, 483 (1996).

16

The “hazardous waste” that RCRA regulates is a narrower category than the “pollutants” that the Clean

Water Act regulates.6 And RCRA is primarily focused

on the management of wastes, rather than the protection and overall health of navigable waters.

The Comprehensive Environmental Response,

Compensation, and Liability Act of 1980 (“CERCLA”),

42 U.S.C. §§ 9601 – 9675, is an even poorer substitute.

CERCLA is not designed to limit pollutant discharges

or contamination in the first instance. Instead, it is primarily focused on promoting the “timely cleanup of

hazardous waste sites” once they are created and “ensur[ing] that the costs of such cleanup efforts [are]

borne by those responsible for the contamination.” Burlington N. and Santa Fe Ry. Co. v. United States, 556

U.S. 599, 602 (2009) (citations omitted). Moreover,

CERCLA governs “hazardous substances,” generally

defined to include substances with particular characteristics or substances that have been specially designated under certain other statutes, see 42 U.S.C.

§ 9601(14), again in contrast with the Clean Water

6

Compare 42 U.S.C. § 6903(5) (defining “hazardous waste”

for purposes of RCRA to mean certain solid waste that may

“cause, or significantly contribute to[,] an increase in mortality or

an increase in serious irreversible, or incapacitating reversible,

illness” or “pose a substantial present or potential hazard to human health or the environment when improperly treated, stored,

transported, or disposed of, or otherwise managed”) with 33

U.S.C. § 1362(6) (defining “pollutant” under the Clean Water Act

to include, among other things, “sewage, garbage, . . . biological

materials, radioactive materials, heat, wrecked or discarded

equipment, rock, sand, [and] cellar dirt”).

17

Act’s broad definition of “pollutant,” see 33 U.S.C.

§ 1362(6).

Likewise, the Safe Drinking Water Act (“SDWA”),

42 U.S.C. §§ 300f – 300j-27, would not fill the gap in

Clean Water Act coverage that would result from reversal of the court of appeals’ decision. See Pet’r Br. 43.

The SDWA protects drinking water—not navigable

waters—by authorizing EPA to set maximum contaminant levels to protect the public health and welfare,

42 U.S.C. § 300f(1) – (2), and by establishing standards

governing the operation of underground injection

wells, id. §§ 300h – 300h-8. Even those provisions are

limited in scope. For instance, the statute does not regulate any contaminant unless EPA has made certain

findings in connection with its impact on drinking water. See, e.g., id. § 300g-1(b)(1)(A) – (B) (directing regulation of contaminants that, among other things, have

the potential to adversely affect human health and are

sufficiently likely to occur in public water systems

“with a frequency and at levels of public health concern”). And as the record in this case demonstrates, the

SDWA in fact is insufficient to incidentally protect navigable waters. See Hawai‘i Wildlife Fund v. County of

Maui, 24 F. Supp. 3d 980, 999, 1003-04 (D. Haw. 2014)

(finding that even after compliance with a permit issued under the SDWA, “more than 50% of the effluent

originating at the [facility] is finding its way into the

ocean,” significantly damaging nearby coral).7

7

Additionally, neither the Coastal Zone Management Act

(Pet’r Br. 44) nor the Oil Pollution Act of 1990 (U.S. Br. 33)

18

2. State Regulation Does Not Adequately

Protect Against the Consequences of

Reversal.

Petitioner and its amici also insist that a Clean

Water Act exception for discharges through groundwater or other conduits poses little cause for concern because, they say, state regulation is and will remain

robust. See, e.g., W. Va. Br. 20-27. These reassurances

are mistaken. Although state regulation plays an important role in protecting water quality, overall it is too

uneven to fill the gap left by Petitioner’s requested exception.

For instance, Petitioner’s amici generally emphasize the degree to which existing state law protects

groundwater. See W. Va. Br. 21-24 (arguing that listed

state laws “highlight [that the] absence of a requirement to obtain an NPDES permit is not equivalent to

an unfettered license to discharge pollutants into

groundwater”). Again, however, this case is not about

protection of groundwater as such. It is about protection of navigable waters from point source discharges

of pollutants that traceably travel through groundwater. Regulation of groundwater quality (or discharges

into groundwater) may incidentally offer a measure of

provides an adequate substitute for Clean Water Act coverage.

The Coastal Zone Management Act’s requirement that each participating state prepare a “Coastal Nonpoint Pollution Control

Program,” 16 U.S.C. § 1455b(a)(1), does not regulate point source

pollution, and the Oil Pollution Act establishes damages liability

for certain oil spills, see 33 U.S.C. § 2702(a).

19

protection for navigable waters, but it is not designed

to do so.

Further, the state laws that Petitioner’s amici

cite offer little in the way of consistency. Some provisions are drafted broadly. See Mich. Comp. Laws

§ 324.3109(1) (providing that a “person shall not directly or indirectly discharge into the waters of the

state a substance that is or may become injurious”).

Others, however, appear to be drawn more narrowly.

See, e.g., Kan. Stat. § 65-164(a) – (b) (prohibiting the

discharge of “sewage,” defined as “any substance that

contains any of the waste products or excrementitious

or other discharges from the bodies of human beings or

animals or chemical or other wastes from domestic,

manufacturing or other forms of industry,” into state

waters). This inevitable lack of uniformity prevents

states from relying dependably on a consistent baseline level of regulation nationwide. See supra at 12-13.

In some instances, moreover, the level of state regulation is tied to federal standards, so that weakening

the latter can weaken the former. In certain states,

state law currently prohibits regulation that goes beyond federal requirements (even though federal law, of

course, permits it). See, e.g., Ariz. Rev. Stat. Ann. § 49203(A)(2) (instructing the director to adopt “a permit

program that is consistent with but no more stringent

than the requirements of the clean water act for the

point source discharge of any pollutant or combination

of pollutants into navigable waters”); Ky. Rev. Stat.

Ann. § 224.16-050(4) (providing that “the cabinet shall

not impose . . . any effluent limitation, monitoring

20

requirement, or other condition which is more stringent than . . . federal regulation”); Miss. Code Ann.

§ 49-17-34(2) (“All rules, regulations and standards relating to air quality, water quality or air emissions or

water discharge standards . . . shall be consistent with

and shall not exceed the requirements of federal statutes and federal regulations, standards, criteria and

guidance.”). In other states, state law references or directly incorporates federal standards. See, e.g., W. Va.

Code § 22-11-4(a)(1) (instructing director to “perform

any and all acts necessary to carry out the purposes

and requirements of this article and of the [Clean Water Act] . . . relating to this state’s participation in the

[NPDES]”). State regulation thus is not independent of

the level of federal regulation and cannot dependably

fill the gap resulting from an atextual groundwaterconduit exception. Indeed, adopting that exception

might well preclude some states from regulating discharges to navigable waters via groundwater, given existing state law prohibiting or restricting regulation

more stringent than federal standards. See, e.g., Ariz.

Rev. Stat. § 49-203(A)(2); Ky. Rev. Stat. Ann. § 224.16050(4); Miss. Code Ann. § 49-17-34(2).

Finally, any protections currently provided by

state law do not guarantee similar protections in the

future, in the absence of Clean Water Act protection.

Without such protection, a state that vigorously protects its waters today may, for whatever reason, decide

to protect its waters less vigorously tomorrow. It would

be a mistake, therefore, to treat the current landscape

of state regulation as a basis for creating the exception

21

that Petitioner and its amici seek, and that Congress

did not provide.

III. REGULATING

GROUNDWATER-CONDUIT

DISCHARGES UNDER THE NPDES PROGRAM IS FEASIBLE WITHOUT UNDUE BURDEN.

Alternatively, Petitioner and its amici argue that

discharges to navigable waters via groundwater

should be excepted from Clean Water Act coverage because (they say) the process of issuing permits for such

discharges would be unduly burdensome for applicants

and for state permitting authorities alike. See, e.g.,

W. Va. Br. 27-34. Not so. Any consideration of burden is

beside the point, because Congress did not include an

exception for groundwater-conduit discharges. But

even if it were appropriate to consider regulatory burdens, the lower court’s ruling is far less onerous than

Petitioner and its amici claim, and any resulting burdens are fully justified.

As an initial matter, claims about dramatically increased burdens rest on an incorrect premise, namely,

that the court of appeals’ decision amounts to a novel

expansion of the NPDES program. See, e.g., Pet’r Br.

45-48. EPA’s own position—until recently—had long

been that discharges to navigable waters via groundwater are not exempt from Clean Water Act regulation.

For nearly twenty-five years, EPA’s manual for

NPDES permit writers has expressly provided that

discharges via groundwater can fall within the NPDES

program. In 1996, that manual recognized that

22

groundwater is not part of the “waters of the United

States,” but that “[i]f . . . there is a discharge to groundwater that results in a ‘hydrological connection’ to a

nearby surface water, the Director may require the discharger to apply for an NPDES permit.” U.S. EPA,

EPA-833-B-96-003, NPDES Permit Writers’ Manual

13 (1996), https://www3.epa.gov/npdes/pubs/owm0243.

pdf. The 2010 manual—which remains the latest version—takes a similar tack. Although that manual

acknowledges that “[t]he CWA does not give EPA the

authority to regulate ground water quality through

NPDES permits,” it makes clear that “[i]f a discharge

of pollutants to ground water reaches waters of the

United States, . . . it could be a discharge to the surface

water (albeit indirectly via a direct hydrological connection, i.e., the ground water) that needs an NPDES

permit.” U.S. EPA, EPA-833-K-10-001, NPDES Permit

Writers’ Manual 1-7 (2010), https://www.epa.gov/sites/

production/files/2015-09/documents/pwm_2010.pdf.

These statements in EPA’s most comprehensive guidance to agencies implementing the NPDES program

are consistent with multiple EPA regulatory preambles over the years.8 They are also consistent with

8

See National Pollutant Discharge Elimination System Permit Regulation and Effluent Limitations Guidelines and Standards for Concentrated Animal Feeding Operations, 66 Fed. Reg.

2960, 3017 (Jan. 12, 2001) (“As a legal and factual matter, EPA

has made a determination that, in general, collected or channeled

pollutants conveyed to surface waters via ground water can constitute a discharge subject to the Clean Water Act.”); Reissuance

of NPDES General Permits for Storm Water Discharges from

Construction Activities, 63 Fed. Reg. 7858, 7881 (Feb. 17, 1998)

(“EPA interprets the CWA’s NPDES permitting program to

23

EPA’s previous explanation of its “longstanding position” at an earlier stage of this very case.9 That EPA’s

pronouncements have long reflected the lack of a categorical exception for discharges through a groundwater conduit confirms that the court of appeals’ decision

is far from novel.

This conclusion is unaffected by the fact that EPA

has reversed course and now believes, erroneously,

that discharges to navigable waters via groundwater

are exempt from NPDES permitting. See Interpretive

Statement on Application of the Clean Water Act

National Pollutant Discharge Elimination System

regulate discharges to surface water via groundwater where there

is a direct and immediate hydrologic connection . . . between the

groundwater and the surface water.”); Amendments to the Water

Quality Standards Regulation That Pertain to Standards on Indian Reservations, 56 Fed. Reg. 64,876, 64,892 (Dec. 12, 1991)

(discharges to groundwater with a direct hydrological connection

to surface water “are regulated because such discharges are effectively discharges to the directly connected surface waters”);

EPA National Pollutant Discharge Elimination System Permit

Application Regulations for Storm Water Discharges, 55 Fed.

Reg. 47,990, 47,997 (Nov. 16, 1990) (stating that rulemaking addressed only “discharges to waters of the United States,” so that

“discharges to ground waters are not covered by this rulemaking

(unless there is a hydrological connection between the ground water and a nearby surface water body)”).

9

See Br. for the U.S. as Amicus Curiae Supporting Pls.Appellees, Hawai‘i Wildlife Fund v. County of Maui, 886 F.3d 737

(9th Cir. 2018) (No. 15-17447), ECF No. 40, 2016 WL 3098501, at

*22 (“EPA’s longstanding position has been that point-source discharges of pollutants moving through groundwater to a jurisdictional surface water are subject to CWA permitting requirements

if there is a ‘direct hydrological connection’ between the groundwater and the surface water.”).

24

Program to Releases of Pollutants from a Point Source

to Groundwater, 84 Fed. Reg. 16,810 (Apr. 23, 2019).

That EPA has reached this conclusion by way of “interpretive guidance” in 2019—in an apparent effort to influence this litigation10—cannot erase the historical

fact that, for nearly three decades, the lack of a groundwater-conduit exception has been the agency’s repeatedly articulated position. There is no reason to think

that the consequences of that prior “longstanding position” have been grievous or destabilizing.

In fact, it is just the opposite. Permitting agencies

have issued permits for discharges reaching navigable

waters via groundwater. As the following examples

demonstrate, coverage of such discharges is not novel

and does not create unmanageable burdens:

•

10

The NPDES permit renewed in 2012 by the

State of Colorado for the Western Sugar Company’s sugar beet factory and associated

wastewater treatment facility authorizes the

company to discharge effluent into groundwater via a series of unlined ponds in accordance

with certain limitations and conditions, based

on a hydrologic connection between the

groundwater and the South Platte River. See

Colorado Discharge Permit System Fact

EPA’s “interpretive statement” asserts that it is meant to

“provide[ ] necessary clarity on the Agency’s interpretation of the

statute” in connection with the grant of certiorari in this case. 84

Fed. Reg. at 16,812. EPA’s newfound interpretation accordingly

should be treated as a “convenient litigating position,” Christopher v. SmithKline Beecham Corp., 567 U.S. 142, 155 (2012), and

receive no deference here.

25

Sheet to Permit Number CO-0041351, https://

environmentalrecords.colorado.gov/HPRMWeb

Drawer/Record/237726 (last visited July 16,

2019).

•

The NPDES permit issued by EPA in 2017

for the Hollywood Casino Wastewater Treatment Plant, located in Jamul, California, authorizes the plant to discharge effluent into

groundwater infiltration basins in accordance

with certain limitations and conditions.

The infiltration basins are located within 100

feet of Willow Creek. EPA concluded that

“wastewater discharged to the infiltration basins has potential to result in surface water

discharges to Willow Creek and is therefore

subject to regulation through an NPDES

permit.” NPDES Permit No. CA0084284

Fact Sheet, at 2, https://www.epa.gov/sites/

production/files/2017-08/documents/ca0084

284-jamul-hollywood_casino_waste_water_

treatment_plant-npdes-permit-factsheet-201708.pdf (last visited July 16, 2019).

•

The NPDES permit issued by EPA in 2015 for

the Tahola Village Wastewater Treatment

Plant, located on the reservation of the

Quinault Indian Nation, authorizes the plant

to discharge effluent into groundwater in accordance with certain limitations and conditions. The effluent “is mixed and diluted into

a groundwater plume prior to entering the

Quinault River as surface water.” NPDES

Permit No. WA0023434 Fact Sheet, at 9, https://

www.epa.gov/sites/production/files/2017-09/

26

documents/r10-npdes-taholah-wa0023434fact-sheet-2015.pdf (last visited July 16, 2019).

•

The NPDES permit reissued by EPA in 2016

to Chevron Mining, Inc. at Questa Mine in

New Mexico, authorizes various discharges

that ultimately reach the Red River. The permit acknowledges that it is not regulating

groundwater quality, but includes provisions

specifically addressing discharges to the Red

River via groundwater seeps and springs. See

NPDES Permit No. NM0022306, at 4, 6-10,

23, 48, https://www. env.nm.gov/swqb/NPDES/

Permits/NM0022306-Chevron-Questa.pdf (last

visited July 16, 2019).

•

The NPDES permit reissued by EPA in 2016

for the Neopit Wastewater Treatment Facility,

located on the Menominee Indian Reservation, authorizes the tribe’s wastewater treatment plant to discharge effluent “to

groundwater via seepage cells to Tourtillotte

Creek” in accordance with certain limitations

and conditions. See NPDES Permit No. WI0073059-2, at 1, https://www.epa.gov/sites/

production/files/2017-02/documents/wi0073059

fnlprmt09_22_2016_0.pdf (last visited July

16, 2019).

Permits such as these confirm that regulating

groundwater-conduit discharges to navigable waters is

neither novel nor infeasible.

Even assuming some novelty, though, there is no

merit to the argument that NPDES regulation of

groundwater-conduit discharges would be unduly

27

burdensome. That argument is difficult to square with

the suggestion that states already regulate discharges

directly to groundwater in a manner sufficiently protective of navigable waters. See W. Va. Br. 20-27. If this

is really true (although the Amici States dispute that

it is, see supra at 18-20), then regulating discharges

that are fairly traceable to navigable waters through a

groundwater conduit should add only an incremental

burden.

In all events, Petitioner and its amici drastically

overstate the administrative burden of regulation. Affirming the court of appeals’ decision will not mean

that every point source discharging into groundwater

must seek an NPDES permit, only those with discharges that can fairly be traced to navigable waters.

That important limitation is consistent with the Clean

Water Act’s focus on protecting navigable waters and

ensures that regulated discharges are indeed “from

[the] point source.” 33 U.S.C. § 1362(12) (emphasis

added).

Besides glossing over this limitation, Petitioner

and its amici ignore the availability of general permits

to minimize administrative burdens. Petitioner and its

amici raise the specter of massive numbers of permit

applications, each requiring individualized analysis

and assessment. See, e.g., Pet’r Br. 45-48; W. Va. Br.

30-31. Yet permitting agencies—whether state or federal—are empowered to issue general permits that address numerous similar point sources in a streamlined

28

process.11 EPA’s regulations provide that a general permit, written to cover a particular geographic area, may

be issued for a category of similar sources. See 40 C.F.R.

§ 122.28(a)(2). Once an agency has issued a general

permit, a discharger generally need only submit a “notice of intent,” not a full individualized application, to

be authorized by the general permit and bound by its

conditions. Id. § 122.28(b)(2). Further, even the requirement to submit a notice of intent can be forgone

in certain circumstances. Id. § 122.28(b)(2)(v); see Miccosukee Tribe, 541 U.S. at 108 n.* (explaining that

“[g]eneral permits greatly reduce [the] administrative

burden [associated with NPDES applications] by authorizing discharges from a category of point sources

within a specified geographic area,” and that “[o]nce

EPA or a state agency issues such a permit, covered

entities, in some cases, need take no further action to

achieve compliance with the NPDES besides adhering

to the permit conditions”).

Thus, by way of example, it is simply not the case

that affirming the court of appeals’ decision would require the submission and review of millions of individualized permit applications for residential septic

tanks, as Petitioner and its amici contend. See, e.g.,

Pet’r Br. 47; W. Va. Br. 30-32. To begin, the permitting

11

Courts have upheld or approved of the use of general permits in the NPDES program. See Environmental Def. Ctr., Inc. v.

EPA, 344 F.3d 832, 853 (9th Cir. 2003) (explaining that “[g]eneral

permitting has long been recognized as a lawful means of authorizing discharges”); Natural Res. Def. Council v. Costle, 568 F.2d

1369, 1380-82 (D.C. Cir. 1977) (noting that the Clean Water Act

allows the use of general permits).

29

requirement applies only where a source’s discharged

pollutants are fairly traceable to navigable waters, and

Petitioner and its amici provide no reason to think this

is commonly the case for residential septic tanks.12 But

even setting that point aside, a state could issue a single general NPDES permit for residential septic tanks

with certain characteristics within its boundaries.

That general permit would specify certain conditions

for permittees to satisfy, but it would not require the

individualized application and review process that Petitioner and its amici portend. A septic tank owner or

operator concerned about the possibility of traceable

discharges to navigable waters via groundwater would

simply submit a notice of intent to be bound by that

general permit. Indeed, in appropriate circumstances,

the state might provide that discharges complying

with applicable conditions are authorized even without

a notice of intent. 40 C.F.R. § 122.28(b)(2)(v); cf. Miccosukee Tribe, 541 U.S. at 108 (noting argument that

“the States or EPA could control regulatory costs by issuing general permits” to the category of point sources

at issue).

Also inapt is the suggestion that discharges to

navigable waters via groundwater should be exempt

from the Clean Water Act because of the supposed difficulty of setting effluent limitations for such discharges. See W. Va. Br. 32-33. Nothing in the definition

of “effluent limitation” requires that compliance be

12

Indeed, existing state law often limits septic tanks’ proximity to surface waters. See, e.g., Colo. Code Regs. § 1002-43:43.7;

Md. Code Regs. 26.04.02.04; 25 Pa. Code § 73.13; S.C. Code Ann.

Regs. 61-56.200.

30

assessed where a pollutant leaves the point source, rather than where it enters or affects navigable waters.

See 33 U.S.C. § 1362(11) (defining “effluent limitation”

as “any restriction established . . . on quantities, rates,

and concentrations of chemical, physical, biological,

and other constituents which are discharged from

point sources into navigable waters”); Natural Res. Def.

Council, Inc. v. County of L.A., 725 F.3d 1194, 1200,

1209 (9th Cir. 2013).

Still, to the extent that there are burdens associated with obtaining and issuing permits for groundwater-conduit discharges or complying with conditions

necessary to protect the quality of navigable waters,

these provisions provide no reason to create the extratextual exception that Petitioner and its amici seek.

Congress included no such exception in the Clean Water Act. Moreover, the Act’s stated purpose of “restor[ing] and maintain[ing] the chemical, physical and

biological integrity of the Nation’s waters” dictates

that it is fair to require polluters to bear those burdens,

rather than saddling the public with the burdens of

added pollution to navigable waters.13

-----------------------------------------------------------------13

Nor is a categorical groundwater-conduit exception justified by the claimed burdens associated with determining whether

a discharge is subject to NPDES permitting. See W. Va. Br. 3233. For many sources, the prospect of Clean Water Act liability

should be clear both to the source’s owner or operator and to state

regulators. Coal ash impoundments, for instance, often are located immediately adjacent to navigable waters, because of power

plants’ need for cooling water. See, e.g., Yadkin, 141 F. Supp. 3d

at 436-37. To the extent that there is doubt about whether discharges would be fairly traceable to navigable waters, Petitioner

31

CONCLUSION

The decision below should be affirmed.

Respectfully submitted,

BRIAN E. FROSH

Attorney General of Maryland

JOSHUA M. SEGAL*

STEVEN J. GOLDSTEIN

Special Assistant

Attorneys General

200 Saint Paul Place

Baltimore, Maryland 21202

jsegal@oag.state.md.us

(410) 576-6446

*Counsel of Record

[Additional Counsel Listed on Following Page]

and its amici provide no reason why it is sensible to require the

public to tolerate the ensuing pollution, rather than require the

polluting source to either take the measures necessary to forestall

such discharges or apply for an NPDES permit.

32

XAVIER BECERRA

Attorney General

STATE OF CALIFORNIA

KARL A. RACINE

Attorney General

DISTRICT OF COLUMBIA

WILLIAM TONG

Attorney General

STATE OF CONNECTICUT

KWAME RAOUL

Attorney General

STATE OF ILLINOIS

AARON M. FREY

Attorney General

STATE OF MAINE

MAURA HEALEY

Attorney General

COMMONWEALTH OF

MASSACHUSETTS

DANA NESSEL

Attorney General

STATE OF MICHIGAN

GURBIR S. GREWAL

Attorney General

STATE OF NEW JERSEY

HECTOR BALDERAS

Attorney General

STATE OF NEW MEXICO

ELLEN F. ROSENBLUM

Attorney General

STATE OF OREGON

PETER F. NERONHA

Attorney General

STATE OF RHODE ISLAND

THOMAS J. DONOVAN, JR.

Attorney General

STATE OF VERMONT

BOB FERGUSON

Attorney General

STATE OF WASHINGTON